Federal Supreme Court, 05.02.2026, 9C_141/2025
Facts
A.________ AG failed to file its tax return for the 2020 tax period. Following several reminders and deadline extensions over a period of more than a year, the Thurgau cantonal tax administration issued an ex officio assessment (based on estimation) on August 29, 2022, setting the taxable net profit at CHF 3,700,000 and the taxable capital at CHF 17,226,600.
The company filed an objection against this decision. The tax administration refused to consider the objection on the grounds that it was not sufficiently substantiated. The company's subsequent cantonal appeals were rejected. The company then appealed to the Federal Supreme Court, requesting the annulment of the decision and the referral of the case back to the previous instance, or alternatively, an order for the tax administration to consider its objection.
Legal Analysis
According toArt. 132 para. 3 DBRA and the corresponding cantonal and harmonized provisions (Art. 164 para. 2 StG/TG ; Art. 48 para. 2 LHID), an objection against an ex officio assessment must be substantiated and indicate any evidence to be provided.
When a tax authority refuses to consider such an objection, the review by appellate bodies is limited to two questions:
- Was the decision not to consider the objection justified (i.e., was the objection effectively unsubstantiated or lacking evidence)?
- Were the conditions for proceeding with an ex officio assessment met in the first place?
Conversely, the substantive merits of the ex officio assessment (the accuracy of the estimated amounts) cannot be examined in the context of an appeal against a decision not to consider an objection, except in cases of nullity.
Application to the present case
The Federal Supreme Court examines the appellant's grievances.
First, it dismisses the argument that the claim also covered the direct federal tax erroneously omitted from the text, deeming the grievance insufficiently substantiated and amounting to an appeal against the assessment of facts.
Second, the Federal Supreme Court confirms that the conditions for ex officio taxation were met. The tax authorities granted several extensions and reminders over a period of more than a year and a half. Refusing to grant a further extension after the final 14-day deadline had passed constitutes neither excessive formalism nor a violation of other constitutional principles. The company never fulfilled its procedural obligations, and the partial incapacity for work of one of its directors does not constitute a valid excuse over such a long period.
Third, the Federal Supreme Court finds that the decision not to admit the claim was correct. The company's claim was limited to announcing future cooperation and requesting a stay of proceedings. It contained no detailed or substantive reasoning challenging the tax factors estimated by the authorities, which is a legal requirement. A mere promise to cooperate is insufficient.
Finally, the Court reiterates that the uncertainty inherent in an estimated tax assessment is attributable to the company itself due to its failure to meet its procedural obligations. When in doubt, the tax authority is not required to adopt the estimates most favorable to the taxpayer.
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The legal costs, amounting to CHF 10,000, are to be borne by the appellant company.
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